S T A T E O F N E W Y O R K
________________________________________________________________________
134
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. SAMPSON -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to permitting the sealing of records of certain nonviolent
misdemeanor or non-sexual misdemeanor offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act shall be known and may be cited as the "second
2 chance for ex-offenders act".
3 S 2. The criminal procedure law is amended by adding a new section
4 160.65 to read as follows:
5 S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
6 1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
7 SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT
8 AN ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN
9 ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
10 ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE, TWO
11 HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI-
12 CLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE MISDEMEANOR SHALL NOT
13 INCLUDE ANY ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE
14 ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID A
15 PERSON WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN SECTION
16 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN
17 THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN
18 THE FOURTH DEGREE AS DEFINED IN SECTION 230.20, RIOT IN THE SECOND
19 DEGREE AS DEFINED IN SECTION 240.05, INCITING TO RIOT AS DEFINED IN
20 SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN
21 SUBDIVISION THREE OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH
22 CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE AS DEFINED IN
23 SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00755-01-3
S. 134 2
1 IN SECTION 242.10, DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN
2 THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
3 SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION
4 485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
5 INCLUDE CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI-
6 TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
7 OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBDIVISION TWO OF
8 SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
9 2. A PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS,
10 WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO
11 MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW, MAY
12 PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA-
13 NORS WHEN:
14 (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
15 ON AN ELIGIBLE MISDEMEANOR; AND
16 (B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
17 FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
18 3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
19 OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
20 MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT MAY ORDER THAT ALL
21 OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION AND
22 CONVICTION RECORDS FOR NO MORE THAN THREE OF THE DEFENDANT'S PRIOR
23 ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED. THE COURT MAY ONLY SEAL
24 THE RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
25 WHEN:
26 (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE DIVISION
27 OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
28 FINGERPRINT BASED CRIMINAL HISTORY RECORD OF THE DEFENDANT, INCLUDING
29 ANY SEALED OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
30 SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM THE
31 FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
32 TION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY
33 AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
34 TIGATION FOR THIS PURPOSE. THE PARTIES SHALL BE PERMITTED TO EXAMINE
35 THESE RECORDS;
36 (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION
37 OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
38 (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
39 THE ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
40 DOCUMENTATION IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
41 SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
42 (D) THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
43 IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT TO
44 WHICH SEALING IS SOUGHT, AND THE COURT OR COURTS OF RECORD FOR SUCH
45 OFFENSES, THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THE
46 DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
47 AND THE COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
48 BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND SUBMIT MATERIALS TO
49 AID THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
50 DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL
51 PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE SEALING APPLICATION BY
52 MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES
53 OF THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
54 FINANCIAL INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE
55 MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
S. 134 3
1 4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
2 TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
3 SEALING APPLICATION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND
4 REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
5 COURT IN ITS DECISION WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
6 ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH A DETERMINATION,
7 THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
8 TO:
9 (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
10 RESULTED IN THE CONVICTION OR CONVICTIONS;
11 (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
12 ER HAS TAKEN SINCE THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
13 TATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY
14 THAT DEMONSTRATES REHABILITATION;
15 (C) THE DEFENDANT'S CRIMINAL HISTORY;
16 (D) THE IMPACT OF SEALING THE DEFENDANT'S RECORDS UPON HIS OR HER
17 REHABILITATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND
18 REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
19 (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
20 FACT A VICTIM OF THE CRIME.
21 5. AFTER A COURT DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
22 REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
23 COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
24 MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
25 WILL BE A FEE OF EIGHTY DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
26 WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
27 THE CLERK OF THE COURT OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
28 CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
29 OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
30 ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
31 SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
32 STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
33 FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH
34 COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
35 SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY
36 FILING FEE TO THE STATE COMMISSIONER OF TAXATION AND FINANCE TO THE
37 CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE-
38 TY-EIGHT-B OF THE STATE FINANCE LAW.
39 6. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
40 RECORDS AND PAPERS RELATING TO THE ARRESTS, PROSECUTIONS, AND
41 CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
42 THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED
43 AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY;
44 PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGERPRINTS, PALM-
45 PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
46 7. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
47 OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
48 OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
49 FOR AN OFFENSE WHICH HAS BEEN CONDITIONALLY SEALED, REGARDING THE
50 RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
51 8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
52 TO:
53 (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
54 (B) QUALIFIED AGENCIES, AS DEFINED IN SUBDIVISION NINE OF SECTION
55 EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND FEDERAL AND STATE
S. 134 4
1 LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN THE SCOPE OF THEIR LAW
2 ENFORCEMENT DUTIES;
3 (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
4 ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE APPLICA-
5 TION FOR SUCH A LICENSE; OR
6 (D) ANY PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
7 THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF
8 SECTION 1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
9 MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
10 PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE
11 OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER
12 THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
13 TO.
14 9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS
15 SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
16 10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
17 SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
18 FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS
19 SHALL BE UNSEALED IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
20 THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN A TERMINATION
21 IN FAVOR OF THE ACCUSED AS DEFINED IN SUBDIVISION THREE OF SECTION
22 160.50 OF THIS ARTICLE OR BY CONVICTION FOR A NON-CRIMINAL OFFENSE AS
23 DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
24 BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
25 S 3. Subdivision 16 of section 296 of the executive law, as separately
26 amended by section 3 of part N and section 14 of part AAA of chapter 56
27 of the laws of 2009, is amended to read as follows:
28 16. It shall be an unlawful discriminatory practice, unless specif-
29 ically required or permitted by statute, for any person, agency, bureau,
30 corporation or association, including the state and any political subdi-
31 vision thereof, to make any inquiry about, whether in any form of appli-
32 cation or otherwise, or to act upon adversely to the individual
33 involved, any arrest or criminal accusation of such individual not then
34 pending against that individual which was followed by a termination of
35 that criminal action or proceeding in favor of such individual, as
36 defined in subdivision two of section 160.50 of the criminal procedure
37 law, or by a youthful offender adjudication, as defined in subdivision
38 one of section 720.35 of the criminal procedure law, or by a conviction
39 for a violation sealed pursuant to section 160.55 of the criminal proce-
40 dure law or by a conviction which is sealed pursuant to section 160.58
41 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
42 ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
43 the licensing, employment or providing of credit or insurance to such
44 individual; provided, further, that no person shall be required to
45 divulge information pertaining to any arrest or criminal accusation of
46 such individual not then pending against that individual which was
47 followed by a termination of that criminal action or proceeding in favor
48 of such individual, as defined in subdivision two of section 160.50 of
49 the criminal procedure law, or by a youthful offender adjudication, as
50 defined in subdivision one of section 720.35 of the criminal procedure
51 law, or by a conviction for a violation sealed pursuant to section
52 160.55 of the criminal procedure law, or by a conviction which is sealed
53 pursuant to section 160.58 of the criminal procedure law, OR BY A
54 CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
55 PROCEDURE LAW. The provisions of this subdivision shall not apply to the
56 licensing activities of governmental bodies in relation to the regu-
S. 134 5
1 lation of guns, firearms and other deadly weapons or in relation to an
2 application for employment as a police officer or peace officer as those
3 terms are defined in subdivisions thirty-three and thirty-four of
4 section 1.20 of the criminal procedure law; provided further that the
5 provisions of this subdivision shall not apply to an application for
6 employment or membership in any law enforcement agency with respect to
7 any arrest or criminal accusation which was followed by a youthful
8 offender adjudication, as defined in subdivision one of section 720.35
9 of the criminal procedure law, or by a conviction for a violation sealed
10 pursuant to section 160.55 of the criminal procedure law, or by a
11 conviction which is sealed pursuant to section 160.58 of the criminal
12 procedure law, OR BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
13 160.65 OF THE CRIMINAL PROCEDURE LAW.
14 S 4. This act shall take effect on the one hundred eightieth day after
15 it shall have become a law and shall apply to all convictions occurring
16 prior to, on, and after such date.